In October of this year, the U.S. Supreme Court heard argument in Warger v. Shauers, a case that centers on the scope of Federal Rule of Evidence 606(b). Rule 606(b) provides in relevant part that as a general matter, parties may not, during an inquiry into the validity of a verdict, introduce juror testimony about statements made during jury deliberations. The rule contains a few exceptions, but the petitioner in Warger argues that the rule itself does not apply to his facts. He contends that the juror testimony he wishes to utilize calls into question the composition of the jury rather than inquiring directly into the deliberations themselves. I will consider in this column whether the distinction is a tenable one and, if so, whether the Supreme Court is likely to embrace it in interpreting Rule 606(b).
The Facts of Warger
Warger involves a civil tort action in which the defendant prevailed at a jury trial. After the verdict came in, the plaintiff in the case, Gregory P. Warger, learned from a juror that another juror had revealed something troubling about herself during deliberations. The latter juror said that if her daughter had been sued for the accident for which she was responsible, it would have ruined the daughter’s life.
Were the petitioner/plaintiff complaining about the juror’s statement in and of itself—and the potential injustice brought about by its utterance during jury deliberations—then it seems clear to all concerned that the situation would be covered by Rule 606(b). The rule prohibits the use of jurors as witnesses in attempts to challenge the validity of a verdict, and such use would be precisely what was involved in arguing that a finding for the defendant ought to be reversed because of something that one juror said to the others during deliberations. Even inappropriate comments by a juror—which the comment in this case arguably was—cannot be paraded before a judge as a means of undoing the work of a jury.
The plaintiff here, however, says that he is making a very different claim. He contends that the juror’s statement about her daughter exposed a fact about the juror that, if honestly conveyed during voire dire, would have led to the juror’s disqualification before the trial even began. Rather than itself constituting misconduct in deliberations, in other words, the petitioner says that the juror’s statement about her daughter (as conveyed by a fellow juror) revealed the fact that she had lied about herself during voire dire when she claimed to be unbiased and willing to find for the plaintiff if he met his burden of proof. Had she been truthful, she would have disqualified herself and would never have been on the jury in the first place.
Utilizing a juror’s testimony to reveal that another juror should never have been seated, argues the plaintiff, is different from utilizing a juror’s testimony to condemn the deliberation process and thereby attack the verdict. In the latter case, a party is arguing that something about the jury’s process yielded an improper verdict, whereas in the former case, a party is saying that no matter what happened during deliberations, the process was inherently flawed because one or more of the jurors should never have been part of it. According to the plaintiff, this first kind of complaint is not really an attack on the verdict at all. And it would be as much of a reason to retry the case if nothing untoward had happened during deliberations and the truth about a juror had instead emerged through the testimony of a third party, as discussed in McDonagh v. Greenwood (in which the U.S. Supreme Court said that a juror’s material dishonesty at voire dire entitles a party to a new trial if an honest response would have provided a valid basis for challenging the juror for cause).
The Reason for Rule 606(b)
To determine whether Rule 606(b) ought to be construed to apply to the plaintiff/petitioner complaint in this case, it might be useful to consider why we have Rule 606(b) at all. One reason for the rule is to guard jurors from the sort of intensive interrogation by attorneys that might occur if the content of deliberations could become grounds for overturning a verdict. Since cases that go to trial virtually always yield at least one party that is unhappy with the result (and thus interested in revisiting the verdict), the protection afforded by Rule 606(b) would be available in most cases to block jurors from testifying about deliberations.
The need to protect jurors from inquisitive attorneys has several facets. First, and perhaps most importantly, people are already resistant to serving on juries and routinely concoct excuses to avoid having to serve. Most people have other obligations, including work and family, with which jury service inevitably conflicts. It may therefore be important to avoid further deterring people from jury service through extensive post-trial questioning by disappointed attorneys who hope to find a flaw in the process that might allow them to reopen the case.
Secondly, if jurors are aware during deliberations that their statements might be carefully examined by the parties after the verdict, then they might refrain from speaking openly and freely with one another. Knowing that one’s statements will be pored over can have a chilling effect on conversation, and that could be an undesirable state of affairs for jurors, whom we expect and hope will be throwing around ideas and fully reviewing the evidence to reach an informed decision about the right result. By leaving the jurors (and their deliberations) alone after trial, we help ensure that they will have a robust and open discussion of the evidence during the case, without fear of reprisal. It is for this reason as well that we do not keep a transcript of what the jurors say to one another during deliberations. The ephemeral nature of conversation can help to avoid self-censorship and incomplete discussion.
Finally, the jurors are performing an important civic function by serving on a jury and taking their jobs as jurors seriously. We do not want to subject them to what they might consider litigant harassment, because they do not deserve such treatment as a reward for their thankless task.
Rule 606(b), in short, serves, among other things, to “exclude” the jurors’ testimony about deliberations from evidence in any subsequent reconsideration of the verdict and thereby to make it unprofitable for litigants to behave in ways that could (1) deter jurors from serving at all, (2) chill serving jurors’ willingness to speak openly and fully during deliberations, and (3) effectively punish people for doing a job that few want and that must be done to keep our trial-by-jury system operating.
How Does the Lying Juror Fit Into the Reasons for Rule 606(b)?
Recall that according to Warger—the petitioner in this case—Rule 606(b) does not apply to his attempt to have a juror provide testimony about a fellow juror’s saying that her daughter’s life would have been destroyed had she been a defendant, offered as a means of challenging the composition of the jury (and thus the outcome of the trial). It does not, in other words, qualify as “an inquiry into the validity of a verdict.” Why not?
The petitioner says that one inquires into the validity of a verdict for purposes of Rule 606(b) if one contends that something improper happened during jury deliberations. According to the petitioner, then, he is inquiring into the composition of the jury and not into the validity of the verdict. It seems more plausible, however, on the text alone, to conclude that if one is claiming that there is something wrong with what led up to the verdict—whether because of what happened during the trial or because of the composition of the jury or because of improper conduct during deliberations—then one is, by definition, challenging the validity of the verdict. One is saying that the verdict is not a valid one and that it ought accordingly to be reversed.
Beyond the text, though, the petitioner argues that there is a big difference between saying, on the one hand, that the juror should not have been seated because she lied (a fact revealed by a disclosure during deliberations), and saying, on the other, that the juror said something during deliberations that tainted the process. What is that big difference?
The petitioner says that the first type of statement involves no necessary claim of prejudice. If the jury is improperly composed, then the verdict is invalid, regardless of whether it would have turned out differently had the jury been properly composed. The second type of statement, by contrast, would involve a claim of prejudice. An argument that something the juror said was wrong would not be enough to overturn the verdict unless the statement might have affected the outcome of the case.
One problem with this argument is that it is not clear why the applicability or inapplicability of harmless error analysis (in which the impact of an error is assessed) should have any bearing on the scope of Rule 606(b). It is true that harmless error analysis might in theory require a closer look at the jury’s deliberations, which could further frustrate the policy of protecting jurors. On the other hand, harmless error analysis generally does not involve a close examination (or any examination) of what jurors actually did but instead requires a court to ask a hypothetical question: Could this error have made a difference in the outcome, given everything else that can be gleaned from the trial transcript?
Answering that question would be consistent with leaving the jurors alone, once the particular improper statement emerged. Furthermore, to the extent that a particular error might lead to an automatic reversal, this fact would itself substantially increase the incentive for attorneys to attempt (through interrogating jurors) to uncover juror disclosures during deliberations that could cast doubt on the truthfulness of those jurors’ answers at voire dire. So the harmless error point could cut either way.
Conceptual Distinction That Resembles a First Amendment Principle
One argument that the petitioner could make for distinguishing between the different sorts of juror testimony at issue would rest on a distinction found in the First Amendment area. Under the First Amendment, a person may generally not be penalized for speech – for something that he or she says. For this reason, if a defendant goes on trial for the crime of saying something offensive, then he has a ready First Amendment defense to the charges.
Yet it is permissible for a prosecutor to introduce the defendant’s statements – statements that the First Amendment protects him in making – as evidence that the defendant committed a criminal act. It may turn out that the defendant’s offensive (but constitutionally protected) speech provides good evidence that the defendant committed a (legitimately so-classified) crime. For example, the statement, “I hate X because of her race and gender,” could help prove that the speaker had a motive to kill X.
Likewise, Rule 606(b) is meant to guard jurors against interrogation and harassment concerning the content of jury deliberations. Accordingly, it would be contrary to the purposes of Rule 606(b) to penalize jurors for their statements during deliberations by classifying those statements themselves as error leading to the overturning of a verdict. By contrast, if we used a juror admission during deliberations merely as evidence of some independent problem—here, a material lie that the juror made during voire dire—then the outcome may not be similarly detrimental to juror autonomy.
Indeed, in many cases, it would be possible to prove the juror’s earlier material lie without even having to ask a fellow juror to provide testimony, given that people familiar with the juror from everyday life might be better able to testify about her truth (e.g., that she hates plaintiffs) than fellow jurors would be.
Though this argument is plausible, I ultimately find myself unconvinced. I suspect that whenever a juror says something arguably inappropriate during deliberations, the losing attorney will be motivated to introduce the inappropriate statement in a challenge to the verdict and will characterize the statement not as objectionable in its own right (though it might be) but as evidence that the juror was materially dishonest during voire dire (e.g., because the statement during deliberations exposed the fact that she never intended to be “fair and unbiased,” as she claimed she would be). That is, as a practical matter, if Rule 606(b) were read to allow juror testimony about a fellow juror’s deliberation statements as evidence of juror dishonesty, then such testimony would be no less attractive to losing attorneys seeking to overturn a verdict than it would be if the goal were expressly to condemn the making of the statements during deliberations as error. And consequently, the policies of Rule 606(b) could be equally undermined.
Maybe Rule 606(b) Is Not So Great
Having said everything that I have up until this point, I should note that it is not clear to me that jurors need the protection that they currently receive under Rule 606(b). It would even perhaps be a good thing to have a full transcript of juror deliberations not only despite the potential chilling effect but because a transcript might chill the sorts of outrageous rule-violating behavior in which jurors engage while inside the black box that is the jury room. It might be a good thing to have some transparency about what takes place in the jury room and thus to have reviewing courts well-positioned to examine, in analyzing the impact of trial error, whether such error actually made a difference instead of asking, as courts currently must do, whether the error is likely to have made a difference. Having a transcript would in fact obviate the need for Rule 606(b), because attorneys could simply read the transcript rather than having to rely on a juror’s imperfect testimonial memory of what another juror might have said.
My less-than-enthusiastic view of jury opacity, however, is not the governing law. In federal courts, at least, jury deliberations are not recorded in any way, and Rule 606(b) expressly forbids juror testimony as a means of attacking a verdict reached by a jury. The U.S. Supreme Court, moreover, has made clear that it is very resistant to interpreting the prohibitions of Rule 606(b) narrowly, in a manner that might allow for juror testimony. It refused, after all, in Tanner v. United States, to permit juror testimony about several jurors in a criminal case consuming alcohol at lunch throughout the trial, causing them to sleep during the testimony presented in the afternoons. As a matter of simple prediction based on prior precedent (and based as well on the Justices’ comments during oral argument), I would put my money on the defendant/respondent winning this case.